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But what if no court ever indicts Yoo? Does that mean he's destined to mold the minds of tomorrow's top lawyers while continuing to stain Boalt and UC Berkeley's reputation for the next quarter century or more? Not necessarily. Despite Edley's contention that he has no options, it turns out there are plenty of ways to get rid of Yoo.
The principle of academic freedom was enshrined in a pre-World War II agreement between college professors and universities. It's predicated on the idea that professors cannot be censored, disciplined, or fired for exercising their free speech rights in their classrooms, their scholarly work, or as citizens. But the 1940 Statement of Principles on Academic Freedom and Tenure is not a blanket protection of all speech. It also says professors "should at all times be accurate, should exercise appropriate restraint, and should show respect for the opinions of others."
Goldsmith's book provides compelling evidence that Yoo's torture memos were not accurate, restrained, or respectful of other opinions, which is why his fellow conservative rescinded them. Indeed, Goldsmith asserted that some of Yoo's more extreme conclusions "had no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law."
In other words, Yoo appears to have simply blown past opposing views and contrary legal opinions as he made up new law. "I think John thought he was writing what ought to be the law, that he was writing into the law what he thought it should be," Georgetown Law Professor Lederman said in an interview, indicating that what Yoo did was highly unusual, if not unprecedented. Lederman served in the Office of Legal Counsel with Yoo but said he was not aware of the torture memos until they became public. It should be noted that Lederman told the Express he does not believe Yoo should be fired by Boalt, but did not rule out some sort of discipline short of that.
Even if the torture memos don't violate the Statement of Principles on Academic Freedom and Tenure, there's a case to be made that they're not protected by the very principle the agreement was based on — the First Amendment. The US Supreme Court has long held that free speech is not an absolute. In the seminal 1969 case, Brandenburg v. Ohio, the court summed up its prior rulings that the constitution does not protect speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
It's pretty clear that Yoo's torture memos produced imminent lawless action. Yoo knew the CIA and the White House wanted to use harsh interrogation methods on Zubaydah that would have violated the Geneva Conventions and the US War Crimes Act. So he gave them a legal opinion that allowed them to do just that — and more — without fear of ever being brought up on charges by a US court. As Goldsmith explained: "If the OLC interprets a law to allow a proposed action, the Justice Department won't prosecute those who rely on the OLC ruling."
In that sense, there's a good argument to be made that Yoo's work traveled beyond mere speech into the realm of action, which the First Amendment typically does not protect at all. Think of the difference between saying you wish someone were dead and actually killing that person. After all, Yoo was not some professor presenting a paper at a scholarly symposium. His memos were official government work that enabled people to be tortured — and quite possibly killed. As a member of the War Council, Yoo did more that just churn out bad opinions; he helped to plot Bush administration legal strategy in the war on terror.
Even if that were held to be an exercise of Yoo's First Amendment rights, despite the strong evidence otherwise, Boalt could still show him the door. For one thing, Edley was wrong: Under the University of California's Faculty Code of Conduct, tenured professors can be fired for more than a criminal conviction. They also can be disciplined or terminated for "violation of canons of intellectual honesty, such as research misconduct."
Although firings of tenured professors for research misconduct are rare, there is one recent example from a major university with similar regulations to UC Berkeley. Last year, the University of Colorado's Board of Regents fired Ward Churchill, a controversial ethnic studies professor. Churchill, a radical leftist, had made national headlines for an outrageous essay written after 9/11 in which he called the victims of the terrorist attacks, "little Eichmanns," comparing them to the notorious Nazi Adolf Eichmann, the architect of the Holocaust. Churchill also suggested that they deserved to be killed.
Once the essay became public in 2005, it sparked an angry backlash and demands that he be fired, especially from conservative radio and cable TV pundits, some of whom now scoff at the idea that Yoo should suffer the same fate. The University of Colorado ultimately decided that Churchill's essay was protected by academic freedom. But during its investigation discovered that Churchill had committed research misconduct in some of his other scholarly work. A university panel charged him with "plagiarism, misuse of others' work," and "falsification and fabrication of authority." In essence, he ripped off other people's ideas and made stuff up.
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